BOOK 11. CHAP. XII. CHAP. XII. OF TREATIES OF ALLIANCE, AND OTHER PUBLIC TREA TIES. (124) ture of treaties. (124) THE subject of treaties is undoubtedly one of the most im- 2 152. Naportant that the mutual relations and affairs of nations can present us with. Having but too much reason to be convinced of the little dependence that is to be placed on the natural obligations of bodies politic, and on the reciprocal duties imposed upon them by humanity, the most prudent nations endeavour to procure by treaties those succours and advantages which the law of nature would insure to them, if it were not rendered ineffectual by the pernicious counsels of a false policy. A treaty, in Latin fœdus, is a compact made with a view to the public welfare by the superior power, either for perpetuity, or for a considerable time. conventions. The compacts which have temporary matters for their ob- 153. Pacject are called agreements, conventions, and pactions. They tions, agreeare accomplished by one single act, and not by repeated acts. ments, or These compacts are perfected in their execution once for all: treaties receive a successive execution whose duration equals that of the treaty. Public treaties can only be made by the superior powers, 154. By by sovereigns, who contract in the name of the state. Thus, whom treaconventions, made between sovereigns respecting their own private affairs, and those between a sovereign and a private person, are not public treaties. ties are made. The sovereign who possesses the full and absolute authority has, doubtless, a right to treat in the name of the state he represents; and his engagements are binding on the whole. nation. But all rulers of states have not a power to make public treaties by their own authority alone: some are obliged to take the advice of a senate, or of the representatives of the [193] nation. It is from the fundamental laws of each state that we must learn where resides the authority that is capable of contracting with validity in the name of the state. Notwithstanding our assertion above, that public treaties are made only by the superior powers, treaties of that nature may nevertheless be entered into by princes or communities, who have a right to contract them, either by the concession of the sovereign, or by the fundamental laws of the state, by particular reservations, or by custom. Thus, the princes and (124) See in general, as to the law of nations respecting treaties, post, Book IV. Chap. II. &c., page 432 to 452, 1 Chitty's Commercial Law, 38 to 47; and, as to commercial treaties in BOOK II. free cities of Germany, though dependent on the emperor CHAP. XII and the empire, have the right of forming alliances with foreign powers. The constitutions of the empire give them, in this as in many other respects, the rights of sovereignty. Some cities of Switzerland, though subject to a prince, have made alliances with the cantons: the permission or toleration of the sovereign has given birth to such treaties, and long custom has established the right to contract them. 2155. Whe under pro ties. As a state that has put herself under the protection of anther a state other, has not on that account forfeited her character of sovetection may reignty (Book I. § 192), she may make treaties and contract make trea- alliances, unless she has, in the treaty of protection, expressly renounced that right. But she continues for ever after bound by this treaty of protection, so that she cannot enter into any engagements contrary to it, that is to say, engagements which violate the express conditions of the protection, or that are in their own nature repugnant to every treaty of protection. Thus, the protected state cannot promise assistance to the enemies of her protector, nor grant them a passage. ? 156. Treaties concluded by proxies or Sovereigns treat with each other through the medium of agents or proxies who are invested with sufficient powers for the purpose, and are commonly called plenipotentiaries. To plenipoten- their office we may apply all the rules of natural law which respect things done by commission. The rights of the proxy are determined by the instructions that are given him: he must not deviate from them; but every promise which he makes in the terms of his commission, and within the extent of his powers, is binding on his constituent. tiaries. At present, in order to avoid all danger and difficulty, princes reserve to themselves the power of ratifying what has been concluded upon in their name by their ministers. The plenipotentiary commission is but a procuration cum libera. If this commission were to have its full effect, they could not be too circumspect in giving it. But, as princes cannot otherwise than by force of arms be compelled to fulfil their engagements, it is customary to place no dependence on their treaties, till they have agreed to and ratified them. Thus, as every agreement made by the minister remains invalid till sanctioned by the prince's ratification, there is less danger in vesting him with unlimited powers. But, before a prince can honourably [194] refuse to ratify a compact made in virtue of such plenipotentiary commission, he should be able to allege strong and substantial reasons, and, in particular, to prove that his minister has deviated from his instructions. 2157. Validity of treaties. ? 158. Injury does A treaty is valid if there be no defect in the manner in which it has been concluded: and for this purpose nothing more can be required than a sufficient power in the contracting parties, and their mutual consent sufficiently declared. An injury cannot, then, render a treaty invalid. He who enters into engagements ought carefully to weigh every thing before he concludes them; he may do what he pleases with BOOK II. his own property, forego his rights, and renounce his advan- CHAP. XII. tages, as he thinks proper; the acceptor is not obliged to in- not render quire into his motives, and to estimate their due weight. If we them void. might recede from a treaty because we found ourselves injured by it, there would be no stability in the contracts of nations. Civil laws may set bounds to injury, and determine what degree of it shall be capable of invalidating a contract. But sovereigns are subject to no superior judge. How shall they be able to prove the injury to each other's satisfaction? Who shall determine the degree of it sufficient to invalidate a treaty? The peace and happiness of nations manifestly require that their treaties should not depend on so vague and dangerous a plea of invalidity. A sovereign nevertheless is in conscience bound to pay a $159. Duty regard to equity, and to observe it as much as possible in all of nations in his treaties. And, if it happens that a treaty which he has this respect. concluded with upright intentions, and without perceiving any unfairness in it, should eventually prove disadvantageous to an ally, nothing can be more honourable, more praiseworthy, more conformable to the reciprocal duties of nations, than to relax the terms of such treaty as far as he can do it consistently with his duty to himself, and without exposing himself to danger, or incurring a considerable loss. ties which are perni Though a simple injury, or some disadvantage in a treaty, § 160. Nulbe not sufficient to invalidate it, the case is not the same with lity of treathose inconveniences that would lead to the ruin of the nation. Since, in the formation of every treaty, the contracting parties cious to the must be vested with sufficient powers for the purpose, a treaty state. pernicious to the state is null, and not at all obligatory, as no [195] conductor of a nation has the power to enter into engagements to do such things as are capable of destroying the state, for whose safety the government is intrusted to him. The nation itself, being necessarily obliged to perform every thing required for its preservation and safety (Book I. § 16, &c.), cannot enter into engagements contrary to its indispensable obligations. In the year 1506, the states-general of the kingdom of France, assembled at Tours, engaged Louis XII. to break the treaty he had concluded with the emperor Maximilian and the archduke Philip, his son, because that treaty was pernicious to the kingdom. They also decided that neither the treaty, nor the oath that had accompanied it, could be binding on the king, who had no right to alienate the property of the crown.* We have treated of this latter source of invalidity in the twenty-first chapter of Book I. For the same reason-the want of sufficient powers-a § 161. Nultreaty concluded for an unjust or dishonest purpose is abso- lity of trealutely null and void,-nobody having a right to engage to do ties made * See the French historians. for an unjust BOOK II. things contrary to the law of nature. Thus, an offensive CHAP. XII. alliance, made for the purpose of plundering a nation from or dishonest whom no injury has been received, may or rather ought to be purpose. broken. ance may be contracted true reli gion. super $162. Whe- It is asked, whether it be allowable to contract an alliance. ther an alli- with a nation that does not profess the true religion, and whether treaties made with the enemies of the faith are valid. with those Grotius has treated this subject at large:* and the discussion who do not might have been necessary at a time when party-rage still profess the obscured those principles which it had long caused to be forgotten; but we may venture to believe that it would be fluous in the present age. The law of nature alone regulates the treaties of nations: the difference of religion is a thing absolutely foreign to them. Different people treat with each other in quality of men, and not under the character of Christians, or of Mohammedans. Their common safety requires that they should be capable of treating with each other, and of treating with security. Any religion that should in this case clash with the law of nature, would, on the very face of it, wear the stamp of reprobation, and could not pretend to derive its origin from the great Author of nature, who is ever steady, ever consistent with himself. But, if the maxims of a religion tend to establish it by violence, and to oppress all those who will not embrace it, the law of nature forbids us to favour that religion, or to contract any unnecessary alliances with [196] its inhuman followers, and the common safety of mankind $ 163. Obligation of observing treaties. invites them rather to enter into an alliance against such a people,-to repress such outrageous fanatics, who disturb the public repose and threaten all nations. It is a settled point in natural law, that he who has made a promise to any one has conferred upon him a real right to require the thing promised,-and, consequently, that the breach of a perfect promise is a violation of another person's right, and as evidently an act of injustice as it would be to rob a man of his property. The tranquillity, the happiness, the security of the human race, wholly depend on justice,on the obligation of paying a regard to the rights of others. The respect which others pay to our rights of domain and property constitutes the security of our actual possessions; the faith of promises is our security for things that cannot be delivered or executed upon the spot. There would no longer be any security, no longer any commerce between mankind, if they did not think themselves obliged to keep faith with each other, and to perform their promises. This obligation is, then, as necessary as it is natural and indubitable, between nations that live together in a state of nature, and acknowledge no superior upon earth, to maintain order and peace in their society. Nations, therefore, and their con * De Jure Belli et Pacis, lib. ii. cap. xv. § 8, et seq. ductors, ought inviolably to observe their promises and their BOOK II. treaties. This great truth, though too often neglected in CHAP. XII. practice, is generally acknowledged by all nations:* the reproach of perfidy is esteemed by sovereigns a most atrocious affront; yet he who does not observe a treaty is certainly perfidious, since he violates his faith. On the contrary, nothing adds so great a glory to a prince, and to the nation he governs, as the reputation of an inviolable fidelity in the performance of promises. By such honourable conduct, as much or even more than by her valour, the Swiss nation has rendered herself respectable throughout Europe, and is deservedly courted by the greatest monarchs who intrust their personal safety to a body-guard of her citizens. The parliament of England has more than once thanked the king for his fidelity and zeal in succouring the allies of his crown. This national magnanimity is the source of immortal glory; it presents a firm basis on which nations may build their confidence; and thus it becomes an unfailing source of power and splendour. As the engagements of a treaty impose on the one hand a § 164. The perfect obligation, they produce on the other a perfect right. violation of The breach of a treaty is therefore a violation of the perfect a treaty is right of the party with whom we have contracted; and this justice. is an act of injustice against him. an act of in those alrea A sovereign already bound by a treaty cannot enter into § 165. Treaothers contrary to the first. The things respecting which ties cannot he has entered into engagements are no longer at his disposal. be made If it happens that a posterior treaty be found, in any parti- contrary to cular point, to clash with one of more ancient date, the new dy existing. treaty is null and void with respect to that point, inasmuch as it tends to dispose of a thing that is no longer in the power of him who appears to dispose of it. (We are here to be understood as speaking of treaties made with different powers.) If the prior treaty is kept secret, it would be an act of consummate perfidy to conclude a contrary one, which may be rendered void whenever occasion serves. Nay, even to enter into engagements, which, from the eventual turn of affairs, may chance at a future day to militate against the secret treaty, and from that very circumstance to prove ineffectual and nugatory, is by no means justifiable, unless we have the ability to make ample compensation to our new ally: otherwise it would be practising a deception on him, to promise him a thing without informing him that cases may possibly occur which will not allow us to substantiate our promise. The ally thus deceived is undoubtedly at liberty to renounce the treaty: but, if he chooses rather to adhere to it, it will hold good with [197] respect to all the articles that do not clash with the prior treaty. Mohammed warmly recommend- treaties.-Ockley's History of the Sa ed to his disciples the observance of racens, vol. i. |